Peggy King v. Dierberg's Markets, Inc.

The Commission affirms and incorporates by reference the administrative law judge's award of benefits as stated in the Award issued November 13, 2009.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued November 13, 2009, is affirmed, and is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of May 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed without modification. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

John J. Hickey, Member

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 27, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis, County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Developed right carpal tunnel syndrome working as a checker.
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: Right upper extremity
14. Nature and extent of any permanent disability: 171 / 2 % of right wrist
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Ann Dalton

Employee: Peggy King

Dependents: N/A

Employer: Dierberg's Markets Inc.

Additional Party: Second Injury fund (open)

Insurer: Self Insured c/o CCMO

Injury No: 05-132631

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV:cw

The issues presented for resolution are:

1. Occupational disease arising out of and in the course and scope of employment;
2. Liability for medical expense;
3. Liability for temporary total disability benefits from February 4, 2006 to February 25, 2006 and May 27, 2006 to June 24, 2006; and
4. The nature and extent of any permanent partial disability and disfigurement.

It was agreed that if the claim were determined to be compensable, the employer/insurer would pay $\ 7,166.62 in medical expense and $\ 2571.36 in temporary total disability benefits.

1. Claimant was born on July 21, 1948. She is 5'7" tall and weighs 165 pounds. She is right- hand dominant. Claimant worked for Dierberg's Markets, Inc. for ten years, 40 hours a week, beginning in September 1998. Her schedule varied from week to week, but she always worked Sunday and at least five days a week, with occasional overtime. She is not currently employed.
2. Claimant has smoked on and off for the past 40 years, smoking up to a pack and a half a day. She last smoked in January 2009.
3. Until the end of 2005, Claimant worked as a cashier, checking groceries about 42 % of the time, at the courtesy counter about 49 % of the time and monitored the U-scan about 9 % of the time. Beginning in late 2005, the Claimant worked solely as a checker.
4. As a checker, the Claimant lifted items from the bottom of grocery carts and placed them on the belt using both hands. She picked up groceries from the conveyor belt with her right hand, transferring them over the scanner to her left hand. This required constant grabbing, flexion and twisting with her hands. Items such as fruits and

vegetables required entry of a code using a ten key touch screen. The screen was heat or touch sensitive. Claimant used her right index finger to "punch" or tap the screen, which was sometimes difficult to use and often required multiple attempts. The screen sometimes had to be cleaned off so it would register heat or touch. In addition, while checking, Claimant sometimes also bagged the same groceries. As a checker, Claimant had to lift items off the bottom of the cart and place them onto the conveyor belt. She explained that she knew the codes for some heavier items and therefore did not have to lift all items from the bottom of the cart; however, it was mandatory to lift alcohol and charcoal. For regular items she would pick them up and slide them from her right hand to her left hand over the scanner. Ninety percent of the time she had a bagger bagging the groceries.

1. Almost every job duty as a checker required constant and repetitive use of the Claimant's hands.
2. At the courtesy counter, Claimant filled cashiers' tills, which required gripping and counting money with her hands. With her hands, she also counted coupons, took payments for utility bills, sold lottery tickets, and processed returned milk bottles. Almost every job duty at the courtesy counter required constant and repetitive use of the Claimant's hands.
3. At the U-scan, Claimant helped customers if there was a problem scanning. She had to pull the bags out and "fluff" them. During any down time, the Claimant cleaned the stations using a spray bottle, which she squeezed with her right hand.
4. As a trainer, the Claimant testified her job duties included showing the employee how to work the touch screen computer system and tapping all keys with the right index or middle finger. When in charge of the U-scan, the Claimant's job duties included helping customers with the touch screen, cleaning the scanner with a spray bottle, fluffing the bags, punching numbers in for codes, all while watching a total of eight U-scanners.
5. In December of 2005, the Claimant started having problems dropping things. She noticed numbness and tingling in her right hand, which radiated into her forearm. These symptoms increased after the Claimant started working solely as a checker. She went to her primary care physician, Dr. Nagel, for a cold and mentioned her hand. Her doctor diagnosed right carpal tunnel syndrome and gave her a brace.
6. After reporting her condition to the employer, the Claimant was directed to Dr. Henry Ollinger regarding the numbness and tingling on the right side in the thumb, long, and ring finger of the right wrist. Dr. Ollinger diagnosed right carpal tunnel syndrome and deQuervain's tenosynovitis, but opined that work was not the prevailing factor in the cause of the conditions. Instead, he cited Claimant's gender and smoking history as "risk" factors. Subsequently, the employer denied workers' compensation benefits therefore the Claimant sought treatment on her own.
7. Claimant first saw Dr. Dysarz. He provided injections. The injections did not provide relief so she went to Dr. Koo. Dr. Koo performed a right endoscopic carpal tunnel

release, right flexor tenosynovectomy, and 1rst dorsal compartment release on May 18,2006.

1. Claimant bumped her right wrist in June or July of 2006 and developed a contusion and relap